Fogarty

A rehearing was granted in this case, after decision in Department, principally because of the complaint of plaintiff that no reason had been assigned for the reversal as to the defendants Nelson and Waters, employees of the principal defendant and fellow-servants of the plaintiff. Upon the reargument, plaintiff's counsel, while urging that the judgments and orders should be affirmed as to the railroad company, stipulated that in the event of reversal as to it, the judgments and orders should also be reversed as to the other defendants. We are satisfied that this course should be adopted. On further consideration, we see no reason to modify the views expressed in the Department opinion as to certain instructions given to the jury at the request of the plaintiff, and on account of which the reversal was ordered. Learned counsel for defendant railroad company earnestly urge that the Department opinion be modified in certain particulars. Much of what is said by counsel in this behalf is due, we cannot but feel, to a misconception of the opinion. Certainly that opinion cannot be construed as declaring that the proximate cause of the accident was the non-adjustment of the brake. The…

This is an action for damages for personal injuries alleged to have been suffered through the negligence of the defendants. Plaintiff was given a verdict against all the defendants for the sum of fifty thousand dollars, on which judgment was entered. On motion for a new trial, the trial court required plaintiff to remit ten thousand dollars thereof, as a condition precedent to the denial of the motion. This plaintiff did, and the motion was denied and the judgment modified accordingly. Defendants appeal from the judgment, the modified judgment, and from the orders denying the motion for a new trial. The defendant Southern Pacific Company, which will hereafter be designated herein as the defendant, is a railroad corporation, owning and operating a railroad in this and other states. Plaintiff was a car-repairer in its employ. At the time of the accident he was, as such car-repairer, working under a car that was standing on what is known as the "cripple track" in defendant's yard at San Luis Obispo, about a quarter of a mile thereon from its junction with the main track. This track was so designated because it was the place where cars were kept while waiting or undergoing repairs. It…